Aboriginal child welfare

Framework for a national policy

Nigel D'Souza

Abstract

The development of policies and strategies to tackle Aboriginal child welfare issues in Australia has taken time but is now gathering pace. Approaches to the problem have not been without difficulties especially when it has concerned minorities, or in the case of Australia and other western, so-called 'over-developed' (Gilroy 1987) countries like Canada and the United States, the children of indigenous peoples. This article outlines some thoughts on the matter of child welfare and indigenous children, taking a brief look at the context of indigenous children's needs in this area at the present time and then going on to propose some solutions in the form of policy frameworks that are suitable for Aboriginal people.

The development of policies and strategies to tackle Aboriginal child welfare issues in Australia has taken time but is now gathering pace. Approaches to the problem have not been without difficulties especially when it has concerned minorities, or in the case of Australia and other western, so-called 'over-developed' (Gilroy 1987) countries like Canada and the United States, the children of indigenous peoples.

This article will outline some thoughts on the matter of child welfare and Indigenous children, taking a brief look at the context of indigenous children's needs in this area at the present time and then going on to propose some solutions in the form of policy frameworks that are suitable for Aboriginal people.

The beginnings

The first Aboriginal Child Care Agencies (ACCAs), were set up in Australia after concern had been expressed by Aboriginal people about the numbers of children that were ending up in the criminal justice system as adults. This in itself would not have been a new discovery were it not for the fact that the Victorian Aboriginal Legal Service and others also noted that many, in fact 90 per cent of their adult clients, had been in institutions or other non- Aboriginal placements when they were children (Sommerlad 1976).

Other strong themes that emerged were that most placements of Aboriginal children were with non-Aboriginal families and institutions, and that white social workers were largely responsible for racist and inappropriate decision- making in relation to the welfare of the children that were brought to the attention of the state welfare department (Sommerlad 1976).

Past and present policy implications

The national umbrella organisation of ACCAs, the Secretariat of National Aboriginal and Islander Child Care (SNAICC), has in the past called this practice an attempt at genocide and called for reparations under the terms of the Genocide Convention Act of 1949, including the establishment of a national inquiry to investigate this policy and period, with the purpose of setting the historical record straight, identifying appropriate services and support for families still affected by the policies, and considering the forms of compensation that should be provided to those affected.

Other, non-Aboriginal observers have also noted the impact of these times, calling the policies 'social control' and 'social and biological engineering':

The 'child welfare' system set up specifically for them [Aborigines] early in the twentieth century was by definition a system of domination deliberately designed to eliminate their parents' culture and society. For them the social control arguments do apply, as it was a wholly unwelcome system designed by members of an alien culture to radically transform theirs, through the systematic removal and resocialisation of the rising generation. (Van Krieken 1991)

The fact that that system and its enabling legislation and policy has largely been dismantled does not mean that the welfare and community services system that we have inherited in Australia today does not have the traces of this 'systematic attempt at social and biological engineering' within it.

Indeed, it still does - albeit in a way that is not as obvious. The implications of this view for policy in relation to systems and institutions is that any policy that seeks to overcome the problems faced by Aboriginal children and their families needs also to address their position of disadvantage/oppression, both historical and contemporary, and the racism - institutional, cultural and personal.

This institutional racism is apparent through the continuing high levels of welfare intrusion in the lives of many Aboriginal families and their children and the disproportionate numbers of Aboriginal and Torres Strait Islander children in the child welfare and juvenile justice systems. Without exception, the figures across all the States and the Northern Territory display a disproportionate number (in relation to their population) of Aboriginal children in the figures for notification and substantiation of abuse and neglect. In fact, in many cases the substantiation of cases of Aboriginal children is a higher proportion than for non-Aboriginal children. The specific reasons for this above average absorption of children into the system are not well known and they require investigation.

The Australian Institute of Health and Welfare figures for 'substantiated cases for Aboriginal and Torres Strait Islander children' according to type of abuse and neglect showed that 2089 out 4032 or 52 per cent of all notifications of abuse or neglect of Aboriginal and Torres Strait Islander children were substantiated as compared with 45 per cent of cases of non- Aboriginal children (Angus and Wilkinson 1993). Although this difference may not be significant, the distribution of the cases by type of abuse and neglect is.

It is noteworthy, for instance, that of all substantiated cases of child abuse and neglect for Aboriginal and Torres Strait Islander Children in Australia 42 per cent were for neglect, 14 per cent for sexual abuse, 20 per cent emotional abuse and 24 per cent physical abuse. The comparable figures for all children was equally divided into four quarters (or 25 per cent) for each category (Angus and Wilkinson 1993).

What are the key issues?

The key issues identified in 'Aboriginal Child Poverty' (Choo 1990) give a general idea of the context of the high level of state intervention into Aboriginal family life in Australia. In her investigation of poverty experienced by Aboriginal children, Choo noted the following factors identified by Aboriginal and Torres Strait Islander people as comprising:

the loss of children from families and communities;

the resulting loss of identity, loss of spiritual and cultural heritage, the loss of contact with the land;

the loss of dignity and self-respect through oppression over the years;

lack of access to a reliable supply of good clean water, food, and other essential services in many Aboriginal communities;

the incidence of alcoholism;

alcoholism and homelessness, contributing to the incidence of physical and sexual abuse of children;

the very poor health of children, which affects their long- term life chances;

the incarceration of children in institutions and prisons;

chronic homelessness, which affects the health and education of [our] children.

These were the factors that Aboriginal people consulted felt at the time were the most immediate and significant problems confronting their children. The report took for granted the fact that these problems existed within a broader context of relative and absolute disadvantage - or oppression - that revealed itself in chronic unemployment, lower income levels, lower educational attainment, appalling housing, racism and a punitive criminal justice system (Choo 1990).

If early evidence as cited had not established clearly enough the connection between institutionalisation or separation of Aboriginal children from their families, and later life in the criminal justice system, then the Royal Commission into Aboriginal Deaths in Custody did so quite conclusively.

In its final report the Royal Commission revealed that 43 out of the 99 people whose deaths in custody it had investigated had 'experienced childhood separation from their natural families through intervention by the State, mission organisations or other institutions. In both New South Wales and Western Australia, over half of the cases had been separated from their families. For Queensland, the proportion was nearly one-half' (Johnston 1991).

In the 1970s, in the aftermath of the 1967 Referendum giving the Commonwealth constitutional powers to make 'special laws'(Constitutional Commission 1986), welfare departments had tried to correct matters from the earlier period of assimilation by treating Aboriginal people 'equally' under the law. In doing this, further mistakes were made which created more problems for Aboriginal families and their children. As an officer of the Department of Community Welfare Services, Victoria, aptly expressed it:

The biggest mistake welfare authorities have made and we are still making in our Aboriginal policy and practice is to view Aborigines as no different to anyone else. Time and again I have had social workers and policy makers say to me 'We don't want to make a special case of Aborigines, we don't want to discriminate by singling Aboriginal children out for special services, we must treat all groups the same.' (Palamara 1979)

Inherent in the approach of welfare departments was one of the biggest problems for Aboriginal people that had not changed since the Referendum. This was the paternalism of the white establishment that did not believe Aboriginal people were capable of making suitable decisions and carrying them out in their way. The racism should not have surprised - it was still there, and the feeling was stronger than ever that the 'white man would never do it for us'.

And so the motivation for the development and establishment of Aboriginal Child Care Agencies, or ACCAs. We need to revisit this time because the problems Aboriginal children continue to face today remain unchanged. Even though Aboriginal people clearly expressed what they wanted in relation to the rights and needs of their children, their wishes have not been taken seriously and, at best, have resulted only in half-measures.

From the time of the First Australian Adoption Conference in 1976 when Dr Elizabeth Sommerlad presented the outcome of a workshop of Aboriginal people, Aboriginal people have been calling for self-determination as a fundamental principle in this field. Since that conference this principle has been reiterated on innumerable occasions in a variety of ways: the message of Aboriginal control of Aboriginal child welfare has been consistent and continuous. Self-determination has also been expressed as Aboriginal community-control of Aboriginal services in the field of child welfare.

International indigenous progress

That Aboriginal people have always insisted on the restoration of their right to control all matters relating to the wellbeing of their children should not have been surprising to anyone. Such a right is also a fundamental principle in the context of international indigenous developments in child welfare. Indeed, developments in other overdeveloped countries in the area of indigenous rights go further, highlighting the relative backwardness of government Aboriginal child and family welfare policy in Australia. An example of this is the hysterical opposition to the recognition of indigenous land title in this country, whereas this is a fact of life in the United States and Canada.

In the United States, Indian child welfare legislation and policy has been developed within the context of the overall approach of policy which recognises the sovereignty of tribes (Pellatt 1991). The Federal Indian Child Welfare Act which was signed into law by President Carter in 1978, addresses problems similar to those faced by Aboriginal children in Australia, including the problem of state jurisdiction over child welfare matters. This United States Act was a major advance in child welfare matters generally, not just for indigenous children. It restored tribal jurisdiction over the wellbeing of their own children and made state laws subordinate to this jurisdiction. While there may be criticisms of the Act and omissions, the claim that it 'provides perhaps the purest and most comprehensive example of self-determination ideology at work' (Gross 1989) is not far off.

In Canada the approach is similar, where section 35(1) of the Constitution Act of 1982 'provides for the recognition and affirmation of existing aboriginal and treaty rights, and therefore a framework for the development of Indian child welfare law and policy (Pellatt 1991).

In both countries it is the recognition of the indigenous status and sovereignty of the Indians that forms the basis for self-determination, sovereignty or community control of child welfare.

In contrast, in Australia there has not been proper acceptance and recognition of the status of Aboriginal people as the indigenous people of this land. From this recognition would also flow the recognition that Aboriginal people have certain rights in relation to their children. It is my belief that a just resolution of the issues raised by the Mabo High Court judgement will open the way for a just settlement in relation to Aboriginal children as well.

Racism in policy systems

Over the years, Aboriginal people have always stressed the difference in their kinship and child-rearing patterns. They have also highlighted the damaging results of eurocentric or racist judgements made about their families and children (VACCA 1984) which resulted in the large-scale removal of children under child welfare legislation after the earlier forced removal under the protection laws.

I make this distinction as a means of demarcating two policy periods, then and now. Many Aboriginal people believe that there has been little change to this practice despite the changes to legislation. Given the disproportionate numbers of Aboriginal children being placed in care and those subject to state intervention in their lives, this view is hard to dispute. Furthermore, numbers of families have had more than their fair share of state intrusion and interference in their lives across two to three generations, if not more.

The policies of paternalist/racist welfare authorities did lasting damage to many families and we are quite likely to find, if we were able to do the research, that the bulk of ACCA caseloads consists of children from these families. The present-day cohesion of some families depends on a number of factors including how many children were taken away from those families and whether they were able to reunite and maintain contact in spite of that separation.

The strength of families, their resistance, their experiences in the face of colonial and other onslaughts are all relevant, as all of these factors have impacted on the form and outcome of today's Aboriginal families. Addressing the damage caused by the removal and assimilation policies, in addition to helping individuals and families trace lost relations, siblings and children, is a large part of ACCA work.

This brings me to the reasons for the removal of Aboriginal children these days. Using Australian Institute of Health and Welfare figures, it has already been shown that the largest category of Aboriginal children regarded as abused or neglected was in the category of 'neglect'. It is disturbing to realise that in the late 1970s when Aboriginal people originally set up their community-controlled agencies, one of the major concerns was the number of children being removed under this category. At that time, however, there was also a category defined as 'being in moral danger' (If Everyone Cared Seminar 1979).

The First Aboriginal Child Survival Seminar in 1979 said:

The reasons why children are removed from Aboriginal families is still a major cause for distrust of the welfare services by Aboriginal people all over Australia. Such vague reasons as 'neglect' - 'being in need of care and protection' - and 'being exposed to moral danger', when applied to Aboriginal families have a totally different effect than when these same criteria are applied to other Australian families. The crisis of Aboriginal child welfare will continue until the standards for defining 'neglect' and 'moral danger' are revised (their emphasis).

Given the glaring discrepancy in the comparative figures for non- Aboriginal children and Aboriginal children in relation to neglect, one can only conclude that racism is at work here. It could be averred that there may be no significant difference if we analysed the social and economic position of all children considered in the figures. My response to this is that Australian society as a whole is culpable and guilty of racism for consigning the majority of Aboriginal children and their families to poverty and disadvantage, which is not the case for all other children in Australia today.

This broad form of racism is compounded by more specific forms of institutional racism involving inappropriate management systems to bad policy and legislation and racist staff. For example, the system of mandatory reporting is of dubious usefulness in the Aboriginal community given the existing suspicion and disapproval of most forms of state intervention in family and community life. In areas of Australia where there is mandatory reporting, Aboriginal Child Care Agencies and community members may not report if there is suspicion of abuse or neglect for fear of activating the state system, preferring instead to deal with such instances on an informal basis first.

For a community who has experienced the worst excesses of the state, working with the arms of the state, in instances where Aboriginal people may be seen by other Aboriginal people as working against their community interests, is a strong sanction and a powerful instrument of accountability. This is not to say that the best interests of children are ignored but rather that they would choose to use their own systems, especially where their children are concerned.

My recommendation to authorities is that where mandatory reporting exists as a statutory requirement, that those authorities work out with ACCAs and communities in their areas alternative systems of reporting that maintain and support Aboriginal community systems, so that state intervention is a minimum and last resort.

Another instance of an inappropriate or racist system is 'permanency planning'. In general terms, there cannot be much argument with the principle of permanency planning which seeks to give children greater security and stability in their lives. However, problems are encountered when the law states that after two years in a placement without the child's natural family appearing to be in a position to have their children back in their care, all children who are wards of the state must be made subject to a permanent placement under law.

For Aboriginal children and families this two-year requirement is too short. Many of the families who have had children removed will not be able to sort out their problems and difficulties in the space of two years. The permanency planning requirement where it exists in law is putting a great deal of pressure on ACCAs and families to show cause why the children concerned should not be made the subject of permanency planning orders.

Furthermore, in most Aboriginal communities children are part of a system of care that can be described as 'intermittent flowing care' (Wharf 1989), where Aboriginal children have different kinship relationships with various members of the extended families and often move between various members of this family or indeed outside it. The premises that the permanency planning principle is based on may not necessarily accord with the concept of child care in Aboriginal communities. This is an argument for caution as much as it is a one for systems to be designed and run by Aboriginal people themselves.

Apart from instances of racism in policy and systems, greater attention needs to be paid to other aspects of the government service delivery that may be racist. This is an area that has progressed in Britain where the discussion of 'anti-racist' strategies are more advanced, especially in the social work profession.

One observer of racism in social work in Britain has drawn some conclusions that are relevant to this country and the situation of Aboriginal people:

The two channels through which racism makes its presence felt in social work practice mark social works contradictory relationship to black people. The contradiction between excluding black people from welfare services and including them in provisions oriented around social works social control function can be explained in terms of the impact of racism in its three forms (personal, institutional, cultural) on the different relationships white social workers have with different client groups within the black population. In other words, those black client groups which white social workers consider 'deserving' of services, but whose needs are deemed to be catered for through black self-help groups, and community and kinship networks, are shunted off through the exclusive channel. Meanwhile, those black client groups which white social workers see as deviating from acceptable white social norms are considered potentially threatening and in need of control to ensure that their socialisation takes place in accordance with white middle-class expectations. Therefore, they are responded to through the inclusive channel. The racist dynamics reproduced through the exclusive channel rely on stereotyping black culture as being able to 'care for its own' while detrimental effects of racism on the development of black cultural forms are either ignored or denied.

Black clients miss out through the lack of provisions aimed specifically at meeting their needs as black people (that is, as people whose lives are shaped by their experience of racism). (Dominelli)

While not all of this may be directly true of this country and the provision of services to children and families, there is undoubtedly a dual system. One which is comparatively well-resourced and controlled and operated in the main by white people, making the rules for the other, under- resourced sector, over-loaded and run by Aboriginal people who are under- paid and over-worked, whose experience does not count for anything and who are described as 'unqualified'. The laws and policies are still made by whites - all supposedly in consultation with Aboriginal people, of course, but whose organisations are inadequately resourced to respond to the demands placed on them, within the time constraints demanded.

It is time the social and community services departments and the child welfare system as a whole was examined to identify the intended and unintended racism within it as part of wider changes that aim to tackle the over- representation of Aboriginal children in the welfare system.

Why national legislation?

There are additional problems with the philosophical underpinnings of the present system, which is still based on focusing on the individual child and not at the child as a member of an extended family or community. Therefore, the system is still based on intervention and the removal of children, as opposed to prevention and support (Boss and Picton 1981), despite of the State and Territory department principles that insist on the importance of the family,

In the present economic climate in this country where large-scale cuts are being made to health and welfare budgets, the chances of developing the preventative side of the child welfare system in some states seems to have receded for some years to come. This coupled with the increasing levels of poverty and disadvantage amongst Aboriginal people means that there can be little optimism about the wellbeing of Aboriginal children in the near future.

Neither is the insertion of the Aboriginal Child Placement Principle in legislation a sufficient condition to turn this situation around. There has to be greater emphasis on prevention and the eradication of poverty and disadvantage in the Aboriginal community.

The modus operandi is presently topsy-turvy. Aboriginal people should not have to respond to the timetables and demands of others. Neither should they be subject to different laws developed within boundaries that were defined during colonial times and vary according to those state boundaries. Apart from being against the spirit of the United Nations Convention of the Rights of the Child which calls for uniform and consistent standards, it is contrary to Aboriginal desires to operate according to tribal and regional identity linked to their identification with their lands.

Of course, the High Court decision in relation to the claims of the Meriam people of the Torres Strait, recognising native title and overturning the fiction of terra nullius, leads in a moral sense, if not legally, to the recognition that Aboriginal people were here before the arrival of Europeans and have legitimate ownership claims on this land. Even though the Australian Government may put a narrow interpretation on the High Court decision in relation to indigenous rights at this time, it will inevitably lead to further recognition of indigenous rights including the area of custom, kinship and social systems.

This is because Mabo was as much a political development as it was an updating of the legal position in this country. Australia could not for very long ignore the developments in indigenous rights in other over-developed countries. As a country we cannot hope - even if we so desired - to remain untouched by developments in related areas overseas. Advances made by movements and people in other parts of the world will be set as precedents for others to follow in time.

Ever since the Secretariat of the National Aboriginal and Islander Child Care (SNAICC) was established in 1982, the first point in our Aims and Objectives has been: 'To establish culturally relevant national legislation relating to Aboriginal and Islander child development' (SNAICC Aims and objectives 1982)

Eleven years on and we are still pursuing this goal. I believe we are closer to our goal now than we have ever been in the past, partly because others like the National Association for the Prevention of Child Abuse and Neglect is also of the view that there should be national legislation to regulate this area.

SNAICC wants national legislation that safeguards the rights of Aboriginal children and their families. This legislation should ensure that all Aboriginal children's cultural and traditional needs are addressed along with the more readily recognisable needs of food, clothing, health, and safety (Thorne 1991).

National legislation should also give to the Australian Federal Government, as the Indian Child Welfare Act does the Federal Government of the United States, the authority to 'make grants to . . . tribes and organisations in the establishment and operation of Indian child and family service programs . . . and in the preparation and implementation of child welfare codes' (Thorne 1991).

Generally speaking, it should recognise the sovereignty of Aboriginal people by empowering local communities and tribes to carry out the work of supporting families and strengthening them to ensure that their children do not become the subject of child protection intervention by the state. Federal legislation should also over-ride state legislation.

This approach will ensure that we move away from stigmatising Aboriginal families as inadequate and dysfunctional. It places the problems of Aboriginal families in their proper historical context, in the context of a society that is the descendant of a brutal colonialism, one that still displays traces of that brutality. Aboriginal people are neither victims nor problems. They are a People, with a clear knowledge of their past uninhibited sovereignty, demanding recognition and restoration of these sovereign rights in a struggle that has antecedents in their history of resistance.

In a conversation recently with one of the Aboriginal community's longest-serving fighters for the rights of their children, Isobel Coe from the Aboriginal Children's Service in New South Wales, likened the situation to one of a continuing and undeclared war, where their adversaries (non- Aborigines) had no rules about who they took as prisoners nor who they killed in their lust for land. She underlined the links that their struggles had with the past struggles of Aboriginal people.

In a situation where the two sides - and one has to accept that there are sides - concerned have such vastly differing views of what constitutes the 'problem', the solutions are not going to be easy to find. It is clear however that this matter cannot be treated by governments like any other welfare matter with conventional approaches to policy development. It is especially important that governments, in lacking local experience, learn from overseas developments, if they haven't got it in them to be courageous and do what Aboriginal people have for years been demanding.

'If Everyone Cared - The First Aboriginal Child Survival Seminar - International Seminar on Aboriginal Family Life and the Welfare of Aboriginal Children', Unpublished (1979).

Palamara, A. (1979), 'Issues in Aboriginal Child Welfare - Public Policy and Practice',in 'If Everyone Cared - The First Aboriginal Child Survival Seminar - International Seminar on Aboriginal Family Life and the Welfare of Aboriginal Children', Unpublished.

Pellatt, Anna S. (1991), An International Review of Child Welfare Policy and Practice in Relation to Aboriginal People, Canadian Research Institute for Law and the Family. Calgary, Alberta, Canada.

Sommerlad, Dr. E. (1976), Homes For Blacks: Aboriginal Community And Adoption, Proceedings of the First Australian Conference on Adoption, University of New South Wales.

Thorne, Jr. The Honourable William A. (1991) 'A Review of The Purpose, Changes and Requirements of the Indian Child Welfare Act' in The Indian Child Welfare Act - A Handbook by Rose-Margaret Orrantia, M. S., Consultant and Child Advocate.

Van Krieken, Robert (1991), Children and the State: social control and the formation of Australian child welfare, Allen & Unwin, Sydney.